Free Motion to Excuse - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 2674

Filed 12/06/2007

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Case No. 00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. RUDY CABRERA SABLAN, et al. Defendant. ______________________________________________________________________________ UNOPPOSED MOTION FOR ORDER WAIVING THE APPEARANCE OF DEFENDANT FOR HEARING ON FEBRUARY 1, 2008 ______________________________________________________________________________ Rudy Sablan requests an order waiving his appearance at the hearing on motions scheduled to commence on February 1, 2008. In support of this request, Mr. Sablan states as follows: 1. This matter is scheduled for a hearing on Defendant's motion regarding the

presentation of evidence of William Sablan's mental health issues. (Docket No. 257.) The issues in this motion will be resolved by proffers, offers of proof and legal argument. The Defendant waived his appearance for this hearing on the record at the conclusion of the hearing on December 4, 2007. The government stated, on the same record, that it had no objection. The Defendant also stated that he would not need an interpreter for the February 1, 2008 hearing. The parties anticipate that the Defendant will participate in the hearing by live video-audio feed from ADX Florence, as he did in the December 3 and 4, 2007 hearings.

Case 1:00-cr-00531-WYD

Document 2674

Filed 12/06/2007

Page 2 of 3

LEGAL ISSUES REGARDING WAIVER OF APPEARANCE AT MOTIONS HEARING 2. F.R.Crim.P. 43 provides that a defendant must be present at: a. b. c. The initial appearance, the arraignment and plea; Every trial stage and; Sentencing.

A defendant "need not be present" for " . . . a conference or hearing on a legal question." The Court has discretion to accept a waiver of appearance from a defendant in a criminal case. In Re U.S. 597 F.2d 27 (2d Cir. 1979); although a defendant has a right to be present at a suppression hearing where testimony is taken, that right is not absolute and may be waived. United States v. Dalli, 424 F.2d 45 (2d Cri. 1970). In Burley v. United States, 295 F.2d 317 (10th Cir. 1961), the Tenth Circuit ruled that the defendant's absence during resolution of issues of law (during the actual trial) was not prejudicial where the defendant was represented by counsel and the defendant's absence was a strategy decision. One of the issues involved an offer of proof (a proffer) regarding the defendant's defense of entrapment. 3. A defendant's right to waive his appearance at certain hearings can be as

important as his right to be present. The Court has accepted a waiver of Mr. Sablan's appearance at previous hearings in this case. The live video feed worked extremely well on December 3 and 4, 2007, and nothing at all was lost. Mr. Knight, as he was on December 3 and 4, will be present with Mr. Sablan at ADX Florence for the February 1, 2008 hearing. WHEREFORE, Rudy Sablan requests waiver of his appearance at the February 1, 2008 hearing on motions.

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Case 1:00-cr-00531-WYD

Document 2674

Filed 12/06/2007

Page 3 of 3

Respectfully submitted, s/ Forrest W. Lewis Forrest W. Lewis FORREST W. LEWIS, P.C. 1600 Broadway, Suite 1525 Denver, Colorado 80202 Telephone: (303) 830-2190 Facsimile: (303) 830-1466 E-mail: [email protected] Donald R. Knight KNIGHT & MOSES, LLC 7852 S. Elati Street, Suite 201 Littleton, Colorado 80120 Telephone: (303) 797-1645 Facsimile: (303) 730-0858 E-mail: [email protected] Attorneys for Defendant Rudy Sablan

CERTIFICATE OF SERVICE I hereby certify that the foregoing UNOPPOSED MOTION FOR ORDER WAIVING THE APPEARANCE OF DEFENDANT FOR HEARING ON FEBRUARY 1, 2008 was electronically filed with the Clerk of the Court using the CM/ECF system on this 6th day of December, 2007, which will send notification of such filing to the to the following e-mail addresses: Brenda Taylor [email protected] Philip Brimmer [email protected]

s/Polly Ashley 3